Shelly Reid-Barton v. City of Greater Sudbury, 2014 HRTO 1174

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelly Reid-Barton Applicant

-and-

City of Greater Sudbury Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: August 7, 2014

Citation: 2014 HRTO 1174

Indexed As: Reid-Barton v. Sudbury (City)

WRITTEN SUBMISSIONS

Shelly Reid-Barton, Applicant ) Self-represented

City of Greater Sudbury; Vicki Baronette; ) Nick Benkovich; Tony Cecuitti; Doug ) Mireille Khoraych, Counsel Nadorozny, Respondent(s) )

Canadian Union of Public Employees, ) Dave Steele, Counsel Local 4795, Affected Party )

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and reprisal.

2In her Application the applicant indicated that the facts of the Application are part of another legal proceeding – a grievance arbitration.

3On June 26, 2014 the Tribunal issued a Notice of Intent to Defer this Application pending the conclusion of the grievance arbitration.

4The respondent is in favour of deferral. Tthe applicant is not. The affected party which has filed a Form 28 Request to Intervene takes no position on deferral but advises that grievances have been filed which relate in part to the issues raised in the Application.

5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case.

6However the Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the some or all of the same facts and issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).

7Accordingly where the parties are already engaged in a concurrent legal proceeding in which they are raising some or all of the same issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.

8In this case, it is apparent that the issues raised in the grievance overlap to a significant degree with those raised in the Application. Both allege unfair treatment in respect of various incidents of the applicant’s employment. In her Application this differential treatment is said to be because of sex and reprisal for a prior human rights Application. In the grievance it is framed as a breach of the settlement of a prior arbitration and the prior Application. While perhaps not co-extensive the factual underpinnings of the two current proceedings are significantly the same. In my view it is most fair, just and expeditious to defer this Application pending the conclusion of the grievance arbitration. The Application will therefore be deferred pending the completion of the grievance process.

9As indicated the Tribunal has received a Request to Intervene filed by the affected party. The respondent has responded to this Request. The Tribunal will deal with the affected party’s Request and the issues raised in the event that this Application is reactivated.

10The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process.

11I am not seized.